Students for Fair Admissions and the End of Racial Classification as We Know It

Abstract

The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA)1 likely marks the beginning of the end of the overt use of race in university admissions. The Court’s decision, however, has much broader implications. Harvard University and the University of North Carolina (UNC) classified applicants based on racial and ethnic categories adopted by the federal government in the 1970s. SFFA concluded that these classifications were so arbitrary as to be unconstitutional. SFFA therefore offers a broad new avenue of attack for litigants challenging racial preferences and other race-based policies based on these ubiquitous classifications. Any entity that is sued for engaging in discriminatory preferences or for otherwise allocating goods or services by race will need to explain why the racial classifications it relies upon don’t fail the arbitrariness test. Part I of this article briefly reviews the history of the use of racial preferences by universities starting in the 1960s. From the Bakke case in 1978 to the commencement of the SFFA litigation in 2014, universities were required, at least officially, to limit their racial preferences to those necessary to achieve “diversity” on campus. Universities divided their applicants by racial classifications concocted by the federal bureaucracy. They then gave admissions preferences to “underrepresented” groups—African Americans, Hispanics, and Native Americans—to enhance diversity. This meant, by logical necessity, disfavoring members of groups deemed to detract from diversity, namely whites and Asian Americans.